Does It Make Sense For Governments To Make Their Content Creative Commons... Or Fully Public Domain?

from the they're-not-the-same dept

One of the few good things that the US government has done on the copyright front was the decision decades back that nearly all works produced by the federal government automatically go into the public domain, and don't receive any form of copyright protection. This makes perfect sense, considering the whole point of copyright law is supposed to be to encourage learning and progress, and to create incentives for that to occur. When it comes to government information, there is no such incentive necessary. I still find it odd that other countries haven't followed suit. Many countries -- especially British Commonwealth countries -- have a special form of copyright for government documents, called Crown Copyright. At times, such Crown Copyright rules have been used to censor dissent.

So, it's certainly nice to hear, via James Firth, that the UK Parliament may consider moving away from relying on Crown Copyright on the works it produces. Apparently, at a discussion concerning the "digital agenda" and making information more open, the Director of Programmes and Development at Parliamentary ICT, Richard Ware, suggested that copyright didn't make sense for Parliamentary content:

"We're not looking to make any kind of return from this content. For us it's more important to open up the information and see what people can do with it."

Now, that's sort of a vague statement, but it at least indicates the direction that they're looking in. What struck me as interesting is that Firth took this statement to mean that Parliament is looking at using Creative Commons for its content. To be honest, it's not clear to me from the coverage of what Ware said that he was, in fact, discussing Creative Commons or some alternative solution. Firth has a nice discussion about the different CC licenses and which might make most sense for Parliament, but I wonder why it doesn't just make sense to go fully public domain on such material.

As much as I like and respect Creative Commons, it does seem that, all too often, people think either that Creative Commons is the public domain or that it's a replacement for the public domain. While CC has introduced a public domain license, I think it's important not to confuse the two. And, while CC licenses certainly make sense for different creators in different arenas, I would worry that for government-produced works, it would just create confusion, as many people seem to assume all CC licenses say things that many do not.

So I'm curious: is there any reason for a government to make its works covered by Creative Commons? Or should they just go public domain? Or, since we want all bases covered, can someone explain why governments should retain some form of copyright on their works?

Crown Copyright...

... some years ago I was hired to help the UK Cabinet Office understand how they could use open source both in their IT environments and as a way to avoid vendor lock-in.

While the politicians understood full well what open-source like licenses could do for them, the civil service was an entirely different matter. It was like an episode of Yes Minister, only it lasted months and the decor was mid-70's avantgarde (thing orange seating, green carpets and lots of white plastic), not classically English.

Anyway, the civil servants would not (and perhaps could not) see how open source licenses were better than Crown Copyright. After all, Crown Copyright gave them all the rights and everyone else nothing, what could be better?

I wish good luck to The Right Honorable gentlemen and ladies in Westminster, but unless they convince the Sir Humphreys' of the world that it's a good idea, it's a complete non-starter.

Broke governments such as ours especially need to get better ROI on content creation, so maybe they wont always be quite so broke. Government gets to create content at a loss. Why not make it a little less of a loss? Maybe the census could break even.

A few years ago, Canada held a series of copyright consultations, where the government sought (and ignored) the opinions of Canadians on all the issues surrounding copyright law.

Quite a few people (including myself) brought up the issue of crown copyright, suggesting that it should be abolished.

"Since it was paid for by the citizens, it should belong to the citizens" was my reasoning.

Some of the leaders seemed genuinely shocked by this idea. I don't understand how it could have been overlooked; we live right beside The States, and I do believe they had *some* influence in how things wend down...

Some thoughts

As a citizen, a key requirement for me is that I am able to distinguish between works produced by the government and works not produced by the government.

The main advantage that I see of a Creative Commons licence over the public domain is that, regardless of which CC licence you choose, they all require the attribution be clear. This bit I did, but this bit the government did. Public domain does not enforce that.

Okay this is a weird POV I admit, and I'm sure there is a good argument that I'm being incredibly jingoistic, but as a State the UK is in economic competition with other States, so should government generated IP etc. be released in such a way that only the stakeholders/citizens of that State can exploit it for free?

Whenever there is talk of releasing US research as public domain 'so that those that ultimately paid for it can exploit it', I always sneakily think 'But we in the UK who didn't pay for it could exploit it too...'

Arguably, public domain is the most expanding area where creative commons licenses are applied. CC's argument is that this gives more authority and security to the information the government is releasing. Is this, giving restriction to the information otherwise could be in public domain, what Creative Commons wanted to achieve in the first place?!

UK Crown Copyright & Parliamentary Copyright

It's important to keep in mind the distinction between UK Crown Copyright and Parliamentary Copyright: http://bit.ly/kiuUk0

Crown Copyright (with some exceptions: http://bit.ly/k3EAII ) is covered by the UK Open Government Licence http://bit.ly/cILWrm (OGL) which came into effect January 2010 - this licence is 'similar' to & 'interoperable with' CC BY licence. So UK government (former & current) deserve credit for this move (although adoption of CC BY licence would have been preferable). We in the UK probably need to shout more about the OGL and the extent of government material that is available for reuse on similar terms of a CC BY licence.

Parliamentary Copyright is not currently covered by the OGL and a 'click use' parliamentary licence applies. http://bit.ly/lTSqsO - however, changes to this are being considered by the government.

The word, regarding Parliamentary Copyright, from The National Archive, (the UK Government Body that manages both Crown and Parliamentary Copyright), by email today, is:

"Parliament intend to move to an "open " licence later this year. The National Archives has been working with Parliament in the last few months and have identified a number of options which are currently under consideration, however at this stage no decision has been made as to the licence(s) that will apply."

It is much more likely that they would change the rules of Crown Copyright rather than trying to go down the road of a type of supplemental license that hasn't yet been fully tested in law. Creative Commons is nice, but the legal implications may not be what they are looking for.

the archived material has a new licence applied to it by the European Archives http://www.europarchive.org/ who host the UK gov web archives. This licence is much more restrictive:

"1. NON COMMERCIAL USE

The Site is and the Collections are provided to you at no cost and are for personal use and for scholarship and research purposes only and may not be used in connection with any commercial endeavours." http://www.europarchive.org/terms.php

This matters as much UK government information, including data sets, has been archived off the main web sites and is now only available through the web archives.

One final point, the European Archives are now out of step on this "non-commercial" restriction with Europeana, a major initiative to digitise and disseminate Europe's cultural heritage. Europeana's new agreement with providers has dropped the present NC clause see:

Of course, Mike Masnick is right, if all this UK government information was public domain from the start we wouldn't have these down-stream licensing problems. But that might be a bit too re(public)an for us - it's called crown copyright for a reason!

Re:

What's unfortunate about this is that the reasoning behind it is that the one who pays to produce a work gets the overbroad copyright to it (too much, too long, too sacrosanct). So, then, all the RIAA arguments, disingenuous as they are, have to be right, too--whoever pays for the making gets all the rights to use, make, change, whatever. But on the State-created content level, I like your suggestion. Unfortunately, my brain can't support it, since it would mean, in some weird way, that downloading music from France without paying for it would somehow be illegal, while doing so within the US would be legal...or something. I think I just had an aneurism.

Let's not be too quick to heap praises on "USG works" that by statute are outside of copyright law. This is solely because of a statute, and a statute today can be a former statute tomorrow. Even under the current statute the USG is able to hold copyright if it is transferred to it by "assignment, bequest or devise". I have seem circumstances in the past where the USG issued a contract for a work its employees could have easily create created, and then insert into the contract that the contractor who created the work was required to assign all rights under copyright law associated with the work to the USG, a nifty way to avoid the statutory preclusion.

What is really sad about this loophole is that every instance where litigation has ensued it involved a contract between the USG and a charitable organization. It seems the notion of charity goes right out the windown the minute dollar signs appear in the charity's eyes.

The basic premise of the statute is fine, but the exceptions could really use some work to have them more reasonably conform to the intent that underlies the basic premise.